No evidence drugmakers falsely marketed opioids, judge rules

In a ruling likely to affect thousands of opioid lawsuits filed across the nation, an Orange County judge tentatively ruled Monday against four California municipalities seeking $52 billion from opioid manufacturers they say downplayed the risk of addiction.

In the final days of the first government-initiated action in the nation seeking to hold opioid manufacturers accountable for an alleged role in creating the opioid epidemic, defense attorneys seized on the fact that Orange County Judge Peter Wilson had repeatedly asked the state's counsel to show evidence that drug companies had misleadingly marketed their painkillers.

In a 42-page tentative ruling Monday, Wilson said the plaintiff counties of Los Angeles, Santa Clara and Orange, and the city of Oakland failed to prove an actionable public nuisance for which the drug companies are liable.

"This court is aware of the toll being taken on society by what has been variously referred to as the 'opioid crisis' or the 'opioid epidemic,'" Wilson wrote. "The court's findings and conclusions address the question of liability based on the evidence in this trial, and are in no manner intended to ignore or minimize the existence and extent of the ongoing opioid crisis."

"Defendants do not dispute that there is an opioid crisis," he continued. "They dispute whether plaintiffs have proven that the opioid crisis constitutes an actionable public nuisance for which defendants are liable."

Filed in 2014, the lawsuit under California's false advertising, unfair competition and public nuisance laws accused Janssen Pharmaceuticals, Teva Pharmaceuticals, Endo Pharmaceuticals and Allergan PLC of fueling an opioid crisis in the state by downplaying risks of addiction in their marketing.

In his tentative, Wilson found no statement in the drug companies' marketing to be false or misleading, indicating the municipalities had also failed to prove liability under False Advertising and Unfair Competition laws. His decision could influence some 3,000 opioid lawsuits filed throughout the U.S. and create a road map for future settlements.

John Hueston and Moez Kaba of Hueston Hennigan LLP, who led drugmaker Endo Pharmaceuticals' defense, called the ruling a historic win, in an email Monday.

"The court's thorough and thoughtful opinion reflects the evidence as it came in over months of testimony," Hueston said. "Endo did not make false or misleading statements, and Endo's lawful conduct did not cause the widespread public nuisance at issue in plaintiffs' complaint."

Attorneys representing the plaintiff jurisdictions, including Rhode Island attorney Fidelma L. Fitzpatrick of Motley Rice LLC, did not respond to a request for comment.

Janssen's parent company, Johnson & Johnson, and three major pharmaceutical distributors have already agreed to pay $26 billion to settle thousands of government lawsuits. The deal involves three major distributors, McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Corp., which would pay $21 billion -- and Johnson & Johnson would pay an additional $5 billion -- over the next 18 years to settle thousands of government filed lawsuits claiming the companies helped spread the nation's opioid crisis. Johnson & Johnson has not admitted any wrongdoing.

Attorneys would receive $1.95 billion, or roughly 7.5% of the total settlement.

The state is represented by the offices of the Santa Clara county counsel, the Orange County district attorney, the Los Angeles county counsel and the Oakland city attorney, Motley Rice LLC, Skikos Crawford Skikos & Joseph LLP and Robinson Calcagnie Inc. People v. Purdue Pharma et al., 14-00725287 (Orange Super. Ct., filed May 21, 2014).